There are many degrees of intellectual disability. The definitions and accepted diagnostic test for determining whether or not a person has an intellectual disability are explained along with key legislation. It is vital that each person’s case be assessed individually, and that the views of the person who has an intellectual disability always be sought, taken into account and, wherever possible, acted upon. All people with Autism Spectrum Disorders can now be considered for disability services.

Contributor

Naomi Anderson

Principal Solicitor, Villamanta Disability Rights Legal Service

Disability Act

Last updated

1 July 2021

The Disability Act 2006 (Vic) was previously the legislation that governed the provision of supports for people with disability. While this has been largely subsumed by the NDIS (see Chapter 8.1: Understanding disability and the law), the other legislation relies on the Disability Act for definition purposes.

The Disability Act is also relevant due to provisions that remain within the Disability Act in relation to guiding principles, compulsory treatment, and detention of people with intellectual disability. (See also Chapter 8.3: Disability and criminal justice, regarding justice plans, residential treatment orders and transfers from prison.)

Principles

Section 6(1) of the Disability Act defines the principles that apply in relation to people with intellectual disability:

  1. persons with an intellectual disability have a capacity for physical, social, emotional and intellectual development;
  2. persons with an intellectual disability have the right to opportunities to develop and maintain skills and to participate in activities that enable them to achieve valued roles in the community;
  3. services for persons with an intellectual disability should be designed and provided in a manner that ensures developmental opportunities exist to enable the realisation of their individual capacities;
  4. services for persons with an intellectual disability should be designed and provided in a manner that ensures that a particular disability service provider cannot exercise control over all or most aspects of the life of a person with an intellectual disability.

The provisions in the Disability Act that continue to affect people with intellectual disability are those that regulate the compulsory treatment and restrictive interventions applied by service providers. 

People with intellectual disability have the same rights to freedom of movement, expression and choice as all other members of the community. Any reduction of these rights is considered to be restrictive practice (see Chapter 8.1: Understanding disability and the law) and is regulated both by NDIS rules and the Disability Act.

Under section 150A of the Disability Act, disability service providers are prohibited from detaining a person with intellectual disability unless it is for the purpose of compulsory treatment. The person may be:

  • admitted to a residential treatment facility under an order specified in section 152(2); or
  • subject to a supervised treatment order under section 191.

Supervised treatment orders

A supervised treatment order (STO) is an order made by the Victorian Civil and Administrative Tribunal (VCAT) under section 191 of the Disability Act. 

A STO may be made if:

  • a person has an intellectual disability; and
  • the person is living in a place classified as a ‘residential service’ under the Disability Act; and
  • the person has previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm; and
  • there is a significant risk of serious harm to another person that cannot be substantially reduced by using less restrictive means; and
  • the services to be provided to the person will be of benefit to the person and substantially reduce the significant risk of serious harm to another person; and
  • the person is unable or unwilling to consent to voluntarily complying with the treatment; and
  • it is necessary to detain the person to ensure compliance.

These orders only apply to people with intellectual disability. A STO cannot be made for more than one year (s 193 Disability Act) but there is no limit to how many STOs can be made. 

Restrictions under a STO can include requirements that the person be supervised at all times, take certain medications, and participate in offence-related treatment.

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